Case: 15-40238
Document: 00512994979
Page: 1
Date Filed: 04/06/2015
No. 15-40238
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO;
STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF
MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH
DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA;STATE OF WISCONSIN;
PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of
North Carolina; C. L. "BUTCH" OTTER, Governor, State of Idaho; PHIL BRYANT, Governor,
State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;
ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF
TENNESSEE,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, SECRETARY,
DEPARTMENT OF HOMELAND SECURITY; R. GIL KERLIKOWSKE, Commissioner of
U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border
Patrol, U.S. Customs and Border of Protection; SARAH R. SALDANA, Director of U.S.
Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and
Immigration Services,
Defendants-Appellants,
________________________
On Appeal from the United States District Court for the Southern District of Texas,
Brownsville Division, No. 1:14-cv-254, The Honorable Andrew Hanen, Presiding Judge
________________________
BRIEF OF JANE DOE #1, JANE DOE #2, AND JANE DOE #3 AS AMICUS CURIAE IN
SUPPORT OF APPELLANTS, SUPPORTING REVERSAL
________________________
NINA PERALES
MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND
110 Broadway, Ste. 300
San Antonio, TX 78205
(210) 224-5476
ADAM P. KOHSWEENEY
GABRIEL MARKOFF
O’MELVENY & MYERS LLP
2 Embarcadero Center, 28th Floor
San Francisco, CA 94111
(415) 984-8700
LINDA SMITH
DLA PIPER LLP
2000 Avenue of the Stars, Ste. 400
Los Angeles, CA 90067
(310) 595-3038
Counsel for Amicus Curiae
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SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES
All current parties to this case, No. 15-40238, are governmental parties
exempt from the certificate requirements of Fifth Circuit Rule 28.2.1. Pursuant to
Fifth Circuit Rule 29.2, which requires “a supplemental statement of interested
parties, if necessary to fully disclose all those with an interest in the amicus brief,”
undersigned counsel of record certifies that the following listed persons have an
interest in this amicus brief. These representations are made in order that the
judges of this Court may evaluate possible disqualifications or recusal.
Amicus curiae with a direct interest in this brief are the following: Jane Doe
#1, Jane Doe #2, and Jane Doe #3. The Jane Does are three undocumented
immigrants who are longtime residents of the Rio Grande Valley of South Texas
and mothers of U.S. citizen children. They were allowed to proceed under
pseudonyms as amici in the district court, and request leave to do so here to protect
themselves from intimidation, violence, and harassment.
Their counsel in this Court are the following: Nina Perales (Mexican
American Legal Defense and Educational Fund); Adam P. KohSweeney and
Gabriel Markoff (O’Melveny & Myers LLP); and Linda Smith (DLA Piper LLP).
Counsel for amici in the district court also included: David Hinojosa (Mexican
American Legal Defense and Educational Fund); J. Jorge deNeve (O’Melveny &
Myers LLP); and Frank Costilla (Law Office of Frank Costilla, LP)
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No party to this case or party’s counsel authored this brief in whole or in
part. No individual or organization other than amici and their counsel contributed
money intended to fund preparing or submitting this brief.
/s/ Nina Perales
Nina Perales
Attorney of Record for
Amicus Curiae
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TABLE OF CONTENTS
Page
CONSENT TO FILING ............................................................................................1
INTEREST OF AMICUS CURIAE...........................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT .......................................1
ARGUMENT ............................................................................................................4
I.
THE STATES’ ASSERTED INJURIES FROM DAPA ARE
SPECULATIVE AT BEST, AND THUS THEY CAN
NEITHER DEMONSTRATE STANDING NOR SHOW
IRREPARABLE INJURY ...................................................................5
A.
B.
Texas’s Asserted Financial Costs From Issuing Driver’s
Licenses Are Contradicted By Its Own Budget And Will
Almost Certainly Be Offset From Increased Gas Tax
Revenue And Other Benefits .....................................................5
i.
Texas’s Allegations Of Financial Harm Conflict
With Its Official Budget Documents And Will
Likely Be Disproved In Discovery As This Case
Proceeds ..........................................................................6
ii.
Revenues For Processing Driver’s Licenses Come
From Gas Taxes And Usage-Based Fees, Which
Are Likely To Increase Under DAPA ............................10
iii.
The Financial Costs Of Issuing Licenses Must Be
Balanced Against The Benefit Of Bringing
Unregulated Drivers Into Compliance With
Texas’s Laws ..................................................................13
The States’ Other Arguments For Harm Are Without
Merit, Since Immigrants Receiving Deferred Action
Under DAPA Will Not Receive Benefits From Social
Services ....................................................................................16
i.
Medicaid And State Health Benefits ..............................16
ii.
Social Security And Medicare .......................................19
iii.
Education, Unemployment, And Other Benefits ............21
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TABLE OF CONTENTS
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II.
RATHER THAN HARMING THE STATES, DAPA WILL
GREATLY BENEFIT THEM BY GROWING THE
ECONOMY, INCREASING DIRECT TAX REVENUES,
AND REDUCING UNDOCUMENTED IMMIGRANTS’ USE
OF SOCIAL BENEFITS ....................................................................24
A.
Undocumented Immigrants Have A Positive Effect On
Economic Growth And Contribute Billions Of Dollars In
Tax Revenue ............................................................................25
B.
DAPA Will Further Increase These Positive Economic
Effects, And Will Have Positive Social Effects As Well ........26
i.
Work Authorization Will Allow Undocumented
Immigrants Access To Better-Paying, Legal Work,
With Corresponding Economic Growth And
Increased Tax Revenues ................................................27
ii.
The Experience Of DACA Shows That The Benefits
Of DAPA, Unlike The States’ Illusory Harms, Will
Be Real ...........................................................................29
iii.
DAPA Will Also Bring Enormous Social Benefits
To American Families ...................................................31
CONCLUSION .......................................................................................................33
CERTIFICATE OF SERVICE ...............................................................................35
CERTIFICATE OF COMPLIANCE ......................................................................36
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TABLE OF AUTHORITIES
Page(s)
Cases
Clapper v. Amnesty Int’l,
133 S. Ct. 1138 (2013) ...........................................................................................4
Plyler v. Doe,
457 U.S. 202 (1982) .............................................................................................22
Winter v. Natural Resources Defense Council,
555 U.S. 7 (2008) ...................................................................................................5
Statutes
8 U.S.C § 1611 .........................................................................................................23
8 U.S.C. § 1611(a) ............................................................................................ 17, 23
8 U.S.C. § 1611(b)(1)(A) .........................................................................................17
8 U.S.C. § 1611(b)(2)...............................................................................................19
8 U.S.C. § 1611(b)(3)...............................................................................................20
8 U.S.C. § 1611(c)(1)(B) .........................................................................................23
8 U.S.C. § 1641 ........................................................................................................17
26 U.S.C. § 3101 ......................................................................................................21
26 U.S.C. § 3102 ......................................................................................................21
42 U.S.C. § 402(a) ...................................................................................................20
42 U.S.C. § 402(n) ...................................................................................................20
42 U.S.C. § 402(y) ...................................................................................................19
42 U.S.C. § 414(a)(1) ...............................................................................................19
42 U.S.C. § 414(a)(2) ...............................................................................................19
42 U.S.C. § 423(c)(1)(A) .........................................................................................19
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TABLE OF AUTHORITIES
(Continued)
Page(s)
42 U.S.C. § 426 ........................................................................................................20
42 U.S.C. § 1381 et seq............................................................................................20
42 U.S.C. § 1395dd ..................................................................................................17
42 U.S.C. § 1396a(a)................................................................................................17
42 U.S.C. § 18032(f)(1) ...........................................................................................17
42 U.S.C. § 18032(f)(3) ...........................................................................................17
Tex. Lab. Code § 201.011(10) .................................................................................22
Tex. Lab. Code § 204.002-.003 ...............................................................................22
Tex. Lab. Code § 207.043 ........................................................................................22
Tex. Transp. Code § 502.046(e) ..............................................................................15
Regulations
7 C.F.R. § 273.4(a)(6) ..............................................................................................23
8 C.F.R. § 1.3 ...........................................................................................................19
20 C.F.R. § 416.1618(b) ..........................................................................................21
20 C.F.R. § 416.202(b) ............................................................................................20
42 C.F.R. § 440.220(c).............................................................................................17
42 C.F.R. § 440.255 .................................................................................................17
42 C.F.R. § 442.255 .................................................................................................17
63 Fed. Reg. 41658 ..................................................................................................23
63 Fed. Reg. 41660 ..................................................................................................23
37 Tex. Admin. Code § 15.51-.53 ...........................................................................14
1 Tex. Admin. Code § 358.203 ................................................................................17
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TABLE OF AUTHORITIES
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Page(s)
1 Tex. Admin. Code § 358.205 ................................................................................17
Rules
Fed. R. App. P. 29(a) .................................................................................................1
Other Authorities
Adam Davidson, Do Illegal Immigrants Actually Hurt the U.S. Economy?, N.Y.
TIMES MAGAZINE, Feb. 12, 2013,
http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actuallyhurt-the-us-economy.html?pagewanted=1&pagewanted=all ........... 24, 25, 26, 30
Center for American Progress, Executive Action on Immigration Will Benefit
Texas’s Economy (November 2014),
http://www.scribd.com/doc/248188359/Economic-Benefits-of-ExecutiveAction-for-Texas ........................................................................................... 30, 31
David Madland and Nick Bunter, Center For American Progress Action Fund,
Legal Status for Undocumented Workers is Good for American Workers (Mar.
20, 2013),
https://www.americanprogressaction.org/issues/labor/news/2013/03/20/57354
..............................................................................................................................25
Deferred Action on Immigration: Implications and Unanswered Questions,
Hearing Before the Senate Committee on Homeland Security and Governmental
Affairs, 114 Cong. ___ (Feb. 4, 2015),
http://www.ssa.gov/oact/testimony/SenateHomeSec_20150204.pdf ..................21
Dep’t of Energy, Energy Consumption by Transportation Fuel in Texas (2015),
http://apps1.eere.energy.gov/states/transportation.cfm/state=TX#motor ............11
Dep’t of Education, Questions and Answers: Financial Aid and Undocumented
Students (2015), https://studentaid.ed.gov/sites/default/files/financial-aid-andundocumented-students.pdf .................................................................................23
https://txapps.texas.gov/tolapp/txdl/. .........................................................................5
Institute on Taxation and Economic Policy, Undocumented Immigrants’ State and
Local Contributions (Jul. 2013),
http://www.itep.org/pdf/undocumentedtaxes.pdf ................................... 25, 26, 27
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Page(s)
Joanna Dreby, Center for American Progress, How Today’s Immigration
Enforcement Policies Impact Children, Families, and Communities: A View
From the Ground (Aug. 2012), https://www.americanprogress.org/wpcontent/uploads/2012/08/DrebyImmigrationFamiliesFINAL.pdf ................ 32, 33
Kari E. D'Ottavio, Deferred Action for Childhood Arrivals: Why Granting Driver's
Licenses to DACA Beneficiaries Makes Constitutional and Political Sense, 72
Md. L. Rev. 931 (2013)........................................................................................15
Letter from Stephen C. Goss, Chief Actuary of the Social Security Administration,
to Senator Ron Johnson (Feb. 2, 2015),
http://www.ssa.gov/OACT/solvency/BObama_20150202.pdf ...........................30
Manuel Pastor, Jared Sanchez, and Vanessa Carter, Center for the Study of
Immigrant Integration, The Kids Aren’t Alright – But They Could Be: The
Impact of Deferred Action for Parents of Americans and Lawful Permanent
Residents (DAPA) on Children (March 2015),
http://dornsife.usc.edu/assets/sites/731/docs/DAPA_Impact_on_Children_CSII_
Brief_Final_01.pdf ...............................................................................................31
Manuel Pastor, Justin Scoggins, Jennifer Tran, and Rhonda Ortiz, Center for the
Study of Immigration Integration, The Economic Benefit of Immigrant
Authorization in California (Jan. 2010),
http://dornsife.usc.edu/assets/sites/731/docs/chirla_v10_small.pdf ........................
..............................................................................................................................27
Michael Sivak, Univ. of Mich. Transp. Research Inst., Has Motorization in the
U.S. Peaked? Part 3: Fuel Consumed By Light Duty Vehicles (Nov. 2013),
http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100360/102974.pdf ........
....................................................................................................................... 11, 12
Michael V. Maciosek, et al., Greater Use of Preventive Services in U.S. Health
Care Could Save Lives at Little or No Cost, 29 HEALTH AFFAIRS 1656 (2010),
http://www.floridahealth.gov/alternatesites/kidcare/council/12-3-10/12-310_kcc-agenda.pdf ...............................................................................................18
Nat’l Ass’n Comm. Health Ctrs., The Impact of Community Health Centers &
Community-Affiliated Health Plans on Emergency Department Use (Apr. 2007),
http://www.nachc.com/client/documents/research/ED_Report_4.07.pdf ...........18
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Office of the Comptroller of Tex., Undocumented Immigrants in Texas: A
Financial Analysis of the Impact to the State Budget and Economy (Dec. 2006),
http://www.coloradoimmigrant.org/downloads/TX%2520Study%2520on%20Un
documented%2520Immigrants%20and%20Economy.pdf ..................................28
Patrick Oakford, Center for American Progress, Administrative Action on
Immigration Reform: The Fiscal Benefits of Temporary Work Permits (Sep.
2014), https://cdn.americanprogress.org/wpcontent/uploads/2014/09/OakfordAdminRelief.pdf ..................................... 29, 30
Robert Lynch and Patrick Oakford, Center for American Progress, The Economic
Effects of Granting Legal Status and Citizenship to Undocumented Immigrants
(Mar. 20, 2013), https://cdn.americanprogress.org/wpcontent/uploads/2013/03/EconomicEffectsCitizenship-1.pdf ................ 24, 25, 27
Roberto G. Gonzales and Angie M. Bautista-Chavez, Two Years and Counting:
Assessing the Growing Power of DACA, American Immigration Council (Jun.
2014),
http://www.immigrationpolicy.org/sites/default/files/docs/two_years_and_counti
ng_assessing_the_growing_power_of_daca_final.pdf ........................... 14, 28, 29
Social Security Number and Card ― Deferred Action for Childhood Arrivals
(2015), http://www.socialsecurity.gov/pubs/deferred_action.pdf .......................19
Tex. Comptroller of Pub. Accounts, Biennial Revenue Estimate 2014–2015:
Sources of State Highway Fund Revenue (2014),
http://www.texastransparency.org/State_Finance/Budget_Finance/Reports/Bienn
ial_Revenue_Estimate/bre2014/BRE_2014-15.pdf...................................... 10, 12
Tex. Comptroller of Public Accounts, Texas Taxes and Tax Rates (2015),
http://www.window.state.tx.us/taxinfo/taxrates.html ..........................................11
Tex. Dep’t of Pub. Safety, Agency Strategic Plan 2009-2013 (2008),
http://www.dps.texas.gov/dpsStrategicPlan/20092013/entire0913asp.pdf#01cover ...........................................................................7
Tex. Dep’t of Pub. Safety, Operating Budget, Fiscal Year 2014 (2013),
https://www.dps.texas.gov/LBB/operatingBudget.pdf ........................... 7, 8, 9, 10
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Tex. Legislative Budget Board, Tex. Highway Funding Legislative Primer (March
2013), http://www.lbb.state.tx.us/Documents/Publications/
Primer/238_TexasHighwayFunding_LegislativePrimer_ThirdEdition2013.pdf ....
..............................................................................................................................11
Tex. Workforce Comm’n, Eligibility & Benefits Amounts (2015),
http://www.twc.state.tx.us/jobseekers/eligibility-benefitamounts#unemploymentBenefitsEligibility ........................................................22
Tex. Workforce Comm’n, Your Tax Rates (2015),
http://www.twc.state.tx.us/businesses/your-tax-rates#generalTaxRate ..............22
The AAA Foundation for Traffic Safety, Unlicensed to Kill (Nov. 2011),
https://www.aaafoundation.org/sites/default/files/2011Unlicensed2Kill.pdf .....14
The Insurance Information Institute, Uninsured Motorists (2015),
http://www.iii.org/fact-statistic/uninsured-motorists ...........................................13
The White House Council of Economic Advisors, The Economic Effects of
Administrative Action on Immigration (Nov. 2014),
https://www.whitehouse.gov/sites/default/files/docs/cea_2014_economic_effects
_of_immigration_executive_action.pdf ...............................................................29
U.S. Census Bureau, American Community Surveys, Means of Transportation to
Work 2009-2013 (2015),
http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S0802/0400000US
48 ..........................................................................................................................13
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CONSENT TO FILING
Pursuant to Fed. R. App. P. 29(a), all parties to this appeal have consented to
the filing of this amicus curiae brief.
INTEREST OF AMICUS CURIAE
Jane Doe #1, Jane Doe #2, and Jane Doe #3 are undocumented immigrants,
mothers of U.S. citizen children, and longtime residents of the Rio Grande Valley
of South Texas. They moved to intervene as Defendants in the court below, and
are currently appealing that court’s denial of intervention to this Court in parallel
case No. 15-40333. Their interest in this suit is to protect their eligibility for
consideration for discretionary grants of deferred action under DAPA and/or
expanded DACA, currently the only legal avenue available to them by which they
can avoid deportation and remain in the United States with their children. Amici
believe that participation as parties in this case is the only means by which they can
protect their interests. However, because they have not yet been granted
intervention, and because the brief of the United States ignores or underplays a
number of critical points and takes positions hostile to the Jane Does’ economic
and personal interests, amici now submit this brief in an attempt to protect their
interests, which the United States does not and cannot adequately represent.
INTRODUCTION AND SUMMARY OF ARGUMENT
The district court committed reversible error by finding standing and
enjoining the implementation of the Department of Homeland Security’s
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November 20, 2014 Deferred Action Guidance Memorandum based on evidence of
alleged injuries that were speculative at best and demonstrably incorrect at worst. 1
Only a few of the States submitted any evidence of injury in the district court, and
that court’s decision rested solely on Texas’s claim that it would be injured
because DAPA would cause it to expend money to issue additional driver’s
licenses. But the States came nowhere close to meeting their burden to prove this
point, and they also failed to prove their alternative argument that DAPA would
result in an increased drain on the social safety net. In fact, the reality is that
DAPA is quite likely to increase the States’ revenues, both in the Texas’s driver’s
license program specifically and in the social safety net overall.
First, with regard to Texas’s alleged costs for processing new driver’s
licenses, the States’ only evidence for these costs is a single, conclusory,
declaration filed below. However, Texas’s publicly available official budgetary
documents demonstrate that the declaration is either wrong or―at the very
least―vastly oversimplified and overstated. Texas has apparently failed to
consider the fact that the fees associated with drivers’ license applications actually
1
Amici will collectively refer to the Deferred Action Guidance Memorandum as
“DHS Memorandum” and the guidance it contains by their common acronyms:
“DAPA,” short for Deferred Action for Parental Accountability, and “expanded
DACA,” short for the provisions related to Deferred Action for Childhood
Arrivals. Amici will collectively refer to these as “DAPA” except where there are
differences between them meaningful to this brief.
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allows Texas to generate a profit off of license applications in the aggregate. The
Texas Department of Public Safety’s official budgetary materials also flatly
contradict Texas’s allegations regarding the need to hire additional personnel to
process driver’s license applications, as well as the cost associated with hiring such
personnel. Indeed, these materials demonstrate that the increased flow of license
applications from DAPA grantees would actually benefit Texas―and that is
without even considering the additional tangible and proven benefits that would
result from DAPA, including increasing gas tax revenue, bringing unlicensed
drivers into compliance with safety laws, and reducing the number of uninsured
motorists on the roads.
Second, as is shown in Part II of this brief with regard to the social safety net
generally, the facts demonstrate that DAPA grantees will pay the same taxes as
U.S. citizens into the various programs that comprise the social safety net, but will
be almost entirely cut off from actually drawing benefits from these programs.
The unfairness of this fact to DAPA grantees aside, it is indisputable that DAPA
will accordingly have a net positive effect on the financial health of these
programs. Commensurately, DAPA will allow currently undocumented workers to
participate more openly and officially in the economy by virtue of legal
employment. This will pump more money into the economy and increase the
Gross Domestic Product, will assist―rather than hinder―the employment
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prospects of full citizens, and will allow DAPA grantees to obtain private health
insurance, thereby further reducing the strain on emergency medical care and
related services.
Even if this Court ultimately finds DAPA’s many benefits to be unproven at
this stage in the case, the strong possibility that they will be proven with further
discovery and at trial is enough to reverse the district court’s order and dissolve the
injunction. The burden of proof is not on the Defendant-Appellant United States
nor the undersigned amici to prove that DAPA will have the effects described
above. Rather, the burden is on the Plaintiff-Appellee States to prove that they will
suffer the irreparable injuries they allege. Because they have not done so, and
cannot do so, the preliminary injunction must be dissolved.
ARGUMENT
None of the harms the States allege will befall them if DAPA is
implemented are sufficient to either demonstrate an Article III injury-in-fact, as
required to show standing, or the likelihood of an irreparable injury, as necessary
to support a preliminary injunction. To establish Article III standing, an alleged
future injury must be not only “concrete, particularized, and actual or imminent,”
but also “certainly impending.” Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 114748 (2013). Additionally, to support a preliminary injunction, a plaintiff must prove
“that irreparable injury is likely in the absence of an injunction. . . . Issuing a
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preliminary injunction based only on a possibility of irreparable harm is
inconsistent with [the] characterization of injunctive relief as an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 22
(2008) (emphasis original).
I.
THE STATES’ ASSERTED INJURIES FROM DAPA ARE
SPECULATIVE AT BEST, AND THUS THEY CAN NEITHER
DEMONSTRATE STANDING NOR SHOW IRREPARABLE INJURY
A.
Texas’s Asserted Financial Costs From Issuing Driver’s Licenses
Are Contradicted By Its Own Budget And Will Almost Certainly
Be Offset From Increased Gas Tax Revenue And Other Benefits
Texas’s alleged injury is simply neither concrete nor plausible enough at this
stage of the litigation to serve as a basis for injury-in-fact or irreparable injury.
Even if the States’ legal arguments regarding what constitutes Article III standing
are correct, Texas’s own budgetary documents demonstrate that its factual
arguments are false. Texas’s publicly available budget documents show that it
completely recoups all processing expenses through the $25 application fees it
charges each applicant.2 Its claims that it will suffer enormous financial injury
appear to be entirely based on the unsupported assumption that the Texas
Department of Public Safety would need to hire hundreds of new employees and
2
The district court calculated this fee as $24, but the DPS website indicates it is
$25. See https://txapps.texas.gov/tolapp/txdl/.
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open significant new office space to process a mere 8.5% increase in driver’s
license applications due to DAPA. This type of naked speculation cannot be a
basis for standing, and it is certainly not the type of concrete injury that is
necessary to support a preliminary injunction. Texas’s allegations have yet to be
tested through discovery and will likely prove to be radically overstated or
completely baseless, thus leaving the States with no provable injury at all.
Moreover, though the district court impliedly admitted that only the net cost
to Texas’s budget could be considered an injury, it failed to consider that
increasing the pool of driver’s license holders is likely to substantially increase tax
revenues and bring unlicensed drivers into compliance with Texas’s driving laws,
two facts that will more than offset whatever costs Texas may incur processing
applications.
i.
Texas’s Allegations Of Financial Harm Conflict With Its
Official Budget Documents And Will Likely Be Disproved In
Discovery As This Case Proceeds
The district court’s sole basis for finding injury-in-fact and irreparable injury
was its conclusory ruling that Texas would suffer a net loss of between $130.89
and $174.73 every time it processed a DAPA recipient’s driver’s license
application. See Order at 22, 115, ECF No. 145. This ruling, however, was based
on a single declaration submitted by Plaintiff-Appellee Texas. In that declaration,
Texas speculated that DAPA would cause the Texas Department of Public Safety
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(“DPS”) to have to spend between $154.89 to $198.73 for each new driver’s
license application it processed, for a high-end total of $103 million over two
years, to hire 640 new employees and add 168,000 square feet of office space. See
ECF No. 64-43 at 1-5. In calculating injury, the district court accepted the
declaration amounts without question and then offset the “per license” figure by
the application fee each driver’s license applicant must pay. See Order at 22.
Texas’s official budgetary publications, however, indicate that its average
costs for issuing licenses are less than $21 per license at most, and that it actually
generates a profit on driver’s license fees. In 2008, DPS estimated that it
processed over 5 million driver’s license transactions “for an average revenue of
$95 million each year.” Tex. Dep’t of Pub. Safety, Agency Strategic Plan 20092013 58 (2008).3 And in 2014, DPS’s projected budget showed it processing 6.1
million license transactions and obtaining over $125 million in driver’s license
fees. See Tex. Dep’t of Pub. Safety, Operating Budget, Fiscal Year 2014
[hereinafter DPS Operating Budget] III.A.38; IV.D.5 (2013).4 Yet that same year,
DPS’s total budget for the “driver license” category, which includes both “driver
license services” and “driving and motor vehicle safety” was slightly less than
3
http://www.dps.texas.gov/dpsStrategicPlan/20092013/entire0913asp.pdf#01cover
4
https://www.dps.texas.gov/LBB/operatingBudget.pdf.
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$124 million. Id. at II.A.2. Even assuming that the entire $124 million in that
department was spent on processing driver’s license applications and doing
nothing else, that works out to an average cost to Texas of less than $21 per
license.5 This indicates that processing licenses actually generates a profit for the
State.
Though it apparently cost Texas less than $21 to process a license
application in 2014, it now claims that adding 520,000 projected license
applications from DAPA (a moderate increase of 8.5% over the 6.1 million license
transactions in 2014) will cost it an additional $103 million, at an average cost of
$198.73 per license. See Order at 22 (citing ECF No. 64-43 at 3-4). Yet Texas
gives no explanation why a DAPA recipient’s application should be exponentially
more expensive than anyone else’s application. And indeed, many of the
calculations contained in Texas’s declaration in this suit are not consistent with the
DPS Operating Budget. For example, Texas claims in this suit that it would need
to hire 2.03 new employees for each 1,750 DAPA recipients who apply for
licenses—one employee for every 875 applications—while the DPS Operating
Budget seems to indicate that in 2014 each employee could handle over 2,500
driver’s license transactions. Compare ECF No. 64-43 at 3-4, with DPS Operating
5
If Texas’s costs are limited to the $22.9 million in the “driver license services”
sub-category, then this rate falls to less than $4 a license.
8
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Budget at III.A.38. All told, Texas claims that the two-year cost just to hire new
employees to handle 520,000 DAPA driver’s license applications would be almost
$80 million, $40 million a year. This makes little sense in light of the fact that the
total salary and wage cost for DPS’s driver’s license division in 2014 was slightly
more than $70 million, and DPS somehow handled 6.1 million license applications
during that time. DPS Operating Budget at III.A.38, 40.
To be sure, discovery may bring more facts to light and complicate both this
and Texas’s own analysis, and it is not impossible that Texas may have some
legitimate calculations to support its claim that each driver’s license application
under DAPA will cost it nearly $175 net of fees. But the critical point is that the
self-interested declaration Texas has put forward at this point in the litigation is not
sufficient to support its claim of injury. On its face, that sworn declaration seems
entirely inconsistent with its own official budgetary documents. Texas’s alleged
financial losses—far from being “concrete, particularized, and actual or imminent”
enough to support standing, let alone an irreparable injury sufficient for a
preliminary injunction—are likely pure speculation. At the very least, they should
be subject to vigorous discovery before providing the sole basis for an injunction.
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Revenues For Processing Driver’s Licenses Come From Gas
Taxes And Usage-Based Fees, Which Are Likely To Increase
Under DAPA
Even taking Texas’s declaration on its face, issuing driver’s licenses to
DAPA grantees will not cause Texas harm “in excess of several million dollars,”
Order at 22, because, in the aggregate, issuing licenses to DAPA recipients is
likely to result in an increase in gas tax revenues and other usage-based revenues
large enough to offset the entire cost of processing new driver’s licenses. The
district court failed to consider the likelihood of increased gas tax revenues at all in
its opinion, thereby rendering Texas’s supposed “net loss” from processing driver’s
license applications entirely speculative.
As noted, in 2014, the Texas DPS budgeted approximately $124 million
total to its driver’s license division, of which $22.9 million was for driver license
services. See DPS Operating Budget at III.A.38, 40. Of the total amount, $106
million came from Texas’s State Highway Fund, which is almost entirely derived
from state gas and lubricant taxes, vehicle registration fees, and matching federal
funds from federal fuel taxes. See Tex. Comptroller of Pub. Accounts, Biennial
Revenue Estimate 2014–2015: Sources of State Highway Fund Revenue, 34 (2014)
[hereinafter Biennial Revenue Estimate 2014–2015] (stating the $8.5 billion
funding for the State Highway Fund in 2015 includes $4.3 billion from state gas
10
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and lubricant taxes and $4.1 billion in federal funds) 6; Tex. Legislative Budget
Board, Tex. Highway Funding Legislative Primer 2-3 (March 2013).7
Texas’s gas tax revenues—and thus the State Highway Fund that funds the
vast bulk of driver’s license services—would only be likely to increase under
DAPA. The district court failed to consider this common-sense point, despite it
being no more speculative than Texas’s own unsupported claims of financial harm.
Texas imposes a $0.20 per gallon tax on the sale of gasoline and similar fuel
products. See Tex. Comptroller of Public Accounts, Texas Taxes and Tax Rates
(2015).8 In 2011, the per-capita consumption of motor fuel gasoline in Texas was
464 gallons. See Dep’t of Energy, Energy Consumption by Transportation Fuel in
Texas (2015). 9 Some other studies, which examine consumption on a per-licenseddriver rate, find significantly higher figures. See Michael Sivak, Univ. of Mich.
Transp. Research Inst., Has Motorization in the U.S. Peaked? Part 3: Fuel
Consumed By Light Duty Vehicles 10 (Nov. 2013) (estimated nationwide gasoline
6
http://www.texastransparency.org/State_Finance/Budget_Finance/Reports/
Biennial_Revenue_Estimate/bre2014/BRE_2014-15.pdf.
7
http://www.lbb.state.tx.us/Documents/Publications/ Primer/
238_TexasHighwayFunding_LegislativePrimer_ThirdEdition2013.pdf.
8
http://www.window.state.tx.us/taxinfo/taxrates.html.
9
http://apps1.eere.energy.gov/states/transportation.cfm/state=TX#motor.
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consumption per licensed driver to be 585 gallons in 2011). 10 Even taking the
lower of these figures, the average DAPA recipient in Texas is likely to pay
$278.40 in gasoline taxes over the three-year period of deferred action, more than
reimbursing the State for the cost of processing her driver’s license application,
even assuming Texas is right that each license application will result in a net loss
to the State of $175. And the actual amount Texas gains is likely to be higher, for
this does not even consider Texas’s other revenue streams that will be bolstered by
an influx of new driver’s license applicants, such as vehicle registration fees, title
fees, usage-based lubricants taxes, and other sources. See Biennial Revenue
Estimate 2014–2015, supra, at 34-35.
Granted, these figures are themselves estimates, and they could be
overstated with respect to potential DAPA recipients who are currently forced to
drive illegally, without licenses, and so are already paying gas taxes. But if it is
speculative to make the common-sense point that adding new driver’s license
holders will lead to increased fuel consumption and higher gas tax revenues, it is
certainly no more speculative than are Texas’s allegations about its costs.
Moreover, it is the States, as the Plaintiffs below, who have the burden of showing
injury. In ruling on Texas’s claim that it was harmed, the district court failed to
10
http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100360/102974.pdf.
12
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account for the increased gas tax revenues Texas would enjoy as a result of DAPA.
For this reason as well, the court’s ruling was unsupported at this early stage of the
litigation and cannot serve as the basis for finding standing or irreparable injury.
iii.
The Financial Costs Of Issuing Licenses Must Be Balanced
Against The Benefit Of Bringing Unregulated Drivers Into
Compliance With Texas’s Laws
Last, Texas’s argument for injury also completely disregards the immediate
economic and social gains that issuing licenses to DAPA recipients would bring to
the entire population of Texas. In Texas, 80 percent of people drive to work. U.S.
Census Bureau, American Community Surveys, Means of Transportation to Work
2009-2013 (2015).11 Faced with the choice of driving without licenses and being
unable to work, undocumented workers in Texas often have no choice but to drive
without licenses. Partially as a result of this fact, as of 2012, 13 percent of Texas
drivers were uninsured. See The Insurance Information Institute, Uninsured
Motorists (2015).12 Allowing DAPA recipients to obtain driver’s licenses would
make Texas’s roads safer and reduce the number of drivers without auto insurance.
These positive effects must be balanced against Texas’s alleged injury.
11
http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S0802/0400000US48
12
http://www.iii.org/fact-statistic/uninsured-motorists.
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Licensing would make Texas’s roads safer. Between 2007 and 2009, 18.2
percent of all fatal crashes involved a driver without a valid license. The AAA
Foundation for Traffic Safety, Unlicensed to Kill 13 (Nov. 2011). 13 Texas requires
driver’s license applicants to pass knowledge and driving tests, as well as a vision
examination. See 37 Tex. Admin. Code § 15.51-.53. DAPA-eligible immigrants
who are currently forced to drive without a license do so without meeting these
basic safety requirements. As the experience with DACA since 2012 has shown,
implementing DAPA would lead to eligible individuals obtaining licenses and
passing these safety requirements. Fifty-seven percent of DACA grantees obtained
a driver’s license in the first 16 months of the program. See Roberto G. Gonzales
and Angie M. Bautista-Chavez, American Immigration Council, Two Years and
Counting: Assessing the Growing Power of DACA 3 (Jun. 2014).14 While it is not
clear how many of these individuals had previously been driving illegally, it is
likely both that at least some of them had been, and that a similar number of DAPA
recipients who are already driving would apply for and obtain licenses. Licensing
would bring them into compliance with Texas’s driving laws and safety
13
https://www.aaafoundation.org/sites/default/files/2011Unlicensed2Kill.pdf.
14
http://www.immigrationpolicy.org/sites/default/files/docs/two_
years_and_counting_assessing_the_growing_power_of_daca_final.pdf.
14
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requirements, making the roadways safer for everyone—immigrant and nativeborn.
Moreover, because Texas would be required to issue driver’s licenses to
DAPA recipients, DAPA is likely to decrease the number of uninsured drivers on
Texas roads, significantly increasing public safety and reducing auto insurance
premiums for all Texas residents. States that have allowed undocumented
immigrants to obtain driver’s licenses thereafter see remarkable declines in the
proportion of drivers who go without auto insurance. See Kari E. D’Ottavio,
Deferred Action for Childhood Arrivals: Why Granting Driver's Licenses to DACA
Beneficiaries Makes Constitutional and Political Sense, 72 Md. L. Rev. 931, 96364 (2013) (noting, inter alia, the experience in New Mexico, where the uninsured
driver rate dropped from 33% to 10.6% in four years after undocumented
immigrants were allowed to obtain driver’s licenses). This is likely to occur in
Texas as well, since proof of insurance is required to register vehicles. See Tex.
Transp. Code § 502.046(e). A drop in the uninsured driver rate would be likely to
have very positive economic effects, which must be set off against Texas’s alleged
injuries. See D’Ottavio, supra, at 963-64.
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The States’ Other Arguments For Harm Are Without Merit,
Since Immigrants Receiving Deferred Action Under DAPA Will
Not Receive Benefits From Social Services
The court below rejected the States’ argument that, because undocumented
immigrants consume social services, DAPA will harm the states by increasing the
costs to social services programs. See Order at 51-52. The States had argued that
“DAPA recipients will be more likely to ‘come out of the shadows’ and to seek
state services and benefits because they will no longer fear deportation. Thus, the
States’ resources will be taxed even more than they were before the promulgation
of DAPA.” Order at 52-53. Although the States’ theory of indirect injury is
speculative at best and the district court properly rejected it, amici emphasize two
reasons why these injuries are nonexistent, using the case of Texas as an example:
first, DAPA will not change anyone’s eligibility for social services benefits; and,
second, DAPA will actually result in greatly increased tax contributions to state
and federal social services programs.
i.
Medicaid And State Health Benefits
DAPA is no threat to the funds in Texas’ health care programs. As
discussed herein, Texas already denies medical care to people who have been
granted deferred action and DAPA, if anything, would actually lower Texas’s
liability for uninsured care.
16
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Federal law, and thus Texas law, does not allow undocumented immigrants
to receive health care through Medicaid, although the federal government does
contribute toward the cost of providing emergency care for undocumented
immigrants. 1 Tex. Admin. Code §§ 358.203, 358.205; 42 C.F.R. § 440.255.
Generally, only “qualified aliens” permanently residing in the United States are
eligible for Medicaid benefits—a category that does not include deferred action
grantees, whether under DAPA or otherwise. See 8 U.S.C. §§ 1611(a); 1641; but
see 8 U.S.C. § 1611(b)(1)(A). Grantees cannot participate in the state or federal
health insurance marketplaces, even with their own money. 42 U.S.C.
§ 18032(f)(1), (f)(3). The State’s only obligations are to provide stabilizing care
for people with emergency medical conditions or in active labor, regardless of their
immigration status, and to cover costs of such care for those who cannot afford it.
Tex. Admin. Code § 358.205; see also 8 U.S.C. § 1611(b)(1)(A); 42 U.S.C.
§ 1395dd, § 1396a(a); 42 C.F.R. §§ 440.220(c), 442.255. But DAPA does not
itself have any effect on eligibility for emergency care since that depends solely on
financial and medical need, not on whether the individual in question has received
a grant of deferred action.
That is why, contrary to the States’ contentions, DAPA will save money for
Texas’ taxpayers and health care system. Even if “in 2008, Texas incurred
$716,800,000 in uncompensated medical care provided to illegal aliens,” Order at
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46, that amount will decrease under DAPA. When prospective grantees in Texas
gain work authorization, they will be better able to seek and hold down jobs with
employer-offered health insurance benefits. See infra, II(B)(i)-(ii). A projected
increase in grantees’ earning power also means that fewer grantees will depend on
uncompensated emergency care provided by hospitals, and that grantees will be
able to purchase private health insurance. More grantees would be able to afford
preventive and primary care with or without insurance, and those options both cost
less and promote better long-term health outcomes than emergency intervention
alone. See Michael V. Maciosek, et al., Greater Use of Preventive Services in U.S.
Health Care Could Save Lives at Little or No Cost, 29 HEALTH AFFAIRS 1656
(2010)15; see also, e.g., Nat’l Ass’n Comm. Health Ctrs., The Impact of Community
Health Centers & Community-Affiliated Health Plans on Emergency Department
Use 2 (Apr. 2007) (regarding high relative costs of emergency room care for
injuries or diseases).16
Texas is justified in being concerned about the costs of health care in its
borders, but DAPA cannot possibly exacerbate those costs. The concern falls far
15
http://www.floridahealth.gov/alternatesites/kidcare/council/12-3-10/12-310_kcc-agenda.pdf.
16
http://www.nachc.com/client/documents/research/ED_Report_4.07.pdf
18
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short of being an injury that creates Article III standing, and there is no rational
causal connection between DAPA and any increase in costs.
ii.
Social Security And Medicare
Recipients of deferred action are assigned social security numbers when they
receive work authorization, so that they can pay taxes on their earnings, but they
are generally ineligible for Social Security benefits. See Soc. Security Admin.,
Social Security Number and Card ― Deferred Action for Childhood Arrivals
(2015).17 Although individuals who have received grants of deferred action could
theoretically receive Social Security retirement benefits, it is very unlikely that any
DAPA recipients will be able to do so unless they later gain permanent
immigration status.
Congress has allowed recipients of deferred action to be eligible for OldAge, Survivor, and Disability Insurance (“OASDI”) benefits, which include what
are colloquially known as “retirement” and “disability” benefits. See 8 U.S.C.
§ 1611(b)(2); 42 U.S.C. § 402(y); 8 C.F.R. § 1.3. However, like everyone who
pays into the Social Security trust fund, recipients of deferred action can only
obtain OASDI coverage by earning it, by paying taxes into the trust fund over the
course of at least 40 qualifying quarters—10 full years of employment. 42 U.S.C.
§§ 414(a)(1), (a)(2); 42 U.S.C. § 423(c)(1)(A) (requiring same for disability
17
http://www.socialsecurity.gov/pubs/deferred_action.pdf.
19
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coverage). Like everyone else, they cannot receive earned benefits until they have
fully paid into the system.
A DAPA grantee’s chances of actually seeing retirement benefits are slim.
One reason for this is that they are not guaranteed 10 years of residence, given that
deferred action grants last only three years and can be revoked at any time. See
DHS Memorandum at 3–5, ECF No. 38-7. Another reason is that the grantee
would have to reach retirement age before she could take benefits. 42 U.S.C.
§ 402(a). And if a grantee eventually is deported, her earned benefits are cut off,
along with the benefits of any non-citizen survivor or spouse outside the country,
unless and until she returns as a lawful permanent resident. 42 U.S.C. § 402(n).
Likewise, for Medicare, although they can enroll, 8 U.S.C. § 1611(b)(3), grantees
will be ineligible until they have earned OASDI coverage. See 42 U.S.C. § 426.
In addition to being ineligible for retirement benefits as a practical matter,
DAPA grantees are categorically barred from receiving means-based benefits
under the Social Security Act. Grantees are, for example, cut off from
Supplemental Security Income (SSI), the social security program that provides
supplemental payments to low-income aged, blind, or disabled. See 42 U.S.C.
§ 1381 et seq. An SSI applicant must be a citizen, a lawful permanent resident, or
“permanently residing in the United States under color of law.” 20 C.F.R. §
416.202(b). The “color of law” clause does not apply to recipients of deferred
20
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action, whether under DAPA, expanded DACA or otherwise. 20 C.F.R.
§ 416.1618(b).
Despite the limitations on grantees’ benefits, grantees and their employers
still have to pay withholding tax to the Social Security Trust Fund for every single
paycheck. 26 U.S.C. §§ 3101, 3102. Given this fact, the Social Security
Administration’s Chief Actuary projects that “the long term actuarial balance for
the combined Old-Age and Survivors Insurance (OASI) and Disability Insurance
(DI) Trust Funds will be improved slightly by the 2014 executive actions.” See
Deferred Action on Immigration: Implications and Unanswered Questions,
Hearing Before the Senate Committee on Homeland Security and Governmental
Affairs, 114 Cong. ___ (Feb. 4, 2015) (testimony of Stephen C. Goss, Chief
Actuary, Social Security Administration).18 Far from threatening U.S. citizens’
and legal permanent residents’ expected benefits, DAPA contributes to securing
their future.
iii.
Education, Unemployment, And Other Benefits
In their filings below, the States also raised the specter of undocumented
immigrants somehow taking advantage of states’ education and unemployment
programs. But DAPA and expanded DACA grantees cannot possibly cost the
States any additional education funds. While the States do indeed have the
18
http://www.ssa.gov/oact/testimony/SenateHomeSec_20150204.pdf, at 2.
21
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obligation to educate undocumented immigrant children in their public K-12
schools, that obligation arises under the Supreme Court’s opinion in Plyler v. Doe,
457 U.S. 202 (1982). DAPA and expanded DACA will not increase the States’
obligations in this regard.
DAPA grantees also will not be a drain on Texas’s unemployment insurance
funds. While DAPA grantees may be able to qualify for unemployment insurance
benefits, see Tex. Lab. Code § 207.043, they will only be able to draw upon these
benefits if they meet the eligibility requirements that apply to all native-born
Texans, including having worked in the year prior to drawing benefits and having
earned a certain baseline amount. See Tex. Workforce Comm’n, Eligibility &
Benefits Amounts (2015).19 And even so, their employers will still be paying
unemployment taxes on their behalf, in an amount that rises as new positions are
added. See Tex. Lab. Code §§ 201.011(10), 204.002-.003; Tex. Workforce
Comm’n, Your Tax Rates (2015).20 As more undocumented immigrants obtain
deferred action and work authorization and subsequently receive better-paying,
longer-term employment, more taxes will be paid into the unemployment system.
The simple truth is that Texas’s unemployment insurance funds will not only not
be harmed by DAPA, but are actually likely to be better off.
19
http://www.twc.state.tx.us/jobseekers/eligibility-benefit-amounts.
20
http://www.twc.state.tx.us/businesses/your-tax-rates.
22
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DAPA grantees will also remain ineligible for any federal needs-based
benefits programs. These include bedrock safety-net institutions like Temporary
Assistance to Needy Families (TANF, colloquially known as welfare), State
Children’s Health Insurance Program (CHIP), 21 and the Supplemental Nutritional
Assistance Program (SNAP, also known as food stamps). As with Medicaid, only
“qualified aliens” can receive these federal public benefits, and DAPA grantees do
not count as such. 8 U.S.C. § 1611(a), (c)(1)(B); 7 C.F.R. § 273.4(a)(6) (clarifying
that only qualifying aliens can participate in SNAP); Interpretation of “Federal
Public Benefit,” 63 Fed. Reg. 41658, 41660 (Aug. 4, 1998) (clarifying that
Medicare, non-emergency Medicaid, TANF, and CHIP are “federal public
benefits” within the meaning of 8 U.S.C § 1611). DAPA grantees also would not
be eligible for federal student aid. See Dep’t of Education, Questions and
Answers: Financial Aid and Undocumented Students 1 (2015).22
To summarize, DAPA grantees will pay into the social safety net but will
not benefit from it—at least not to the same extent that others do. Accordingly, the
21
At least one child of every prospective DAPA grantee is already eligible for
CHIP, of course, by being a citizen or legal permanent resident (assuming the
family meets income requirements), but their eligibility will not be affected by
DAPA.
22
https://studentaid.ed.gov/sites/default/files/financial-aid-and-undocumentedstudents.pdf.
23
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States’ claims that they are harmed by DAPA grantees’ use of social services
benefits is indisputably wrong.
II.
RATHER THAN HARMING THE STATES, DAPA WILL GREATLY
BENEFIT THEM BY GROWING THE ECONOMY, INCREASING
DIRECT TAX REVENUES, AND REDUCING UNDOCUMENTED
IMMIGRANTS’ USE OF SOCIAL BENEFITS
DAPA will be an economic boon to the Plaintiff-Appellee States and the
nation as a whole. The consensus among economists is that immigration—by both
documented and undocumented individuals—benefits the economy on both state
and national levels. See Adam Davidson, Do Illegal Immigrants Actually Hurt the
U.S. Economy?, N.Y. TIMES MAGAZINE, Feb. 12, 2013.23 Keeping undocumented
immigrants in the shadow economy actually hinders the potential they can offer,
while increased integration of the undocumented immigrant population bolsters the
benefits already provided by undocumented workers. See Robert Lynch and
Patrick Oakford, Center for American Progress, The Economic Effects of Granting
Legal Status and Citizenship to Undocumented Immigrants 2 (Mar. 20, 2013).24
Moreover, DAPA will keep young U.S. citizens in stable families without the fear
23
http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actuallyhurt-the-us-economy.html?pagewanted=1&pagewanted=all.
24
https://cdn.americanprogress.org/wp-content/uploads/2013/03/
EconomicEffectsCitizenship-1.pdf.
24
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and stress that deportation could destroy their families, thereby providing
immeasurable social benefits as well.
A.
Undocumented Immigrants Have A Positive Effect On Economic
Growth And Contribute Billions Of Dollars In Tax Revenue
Undocumented immigrants make the American economy stronger. Despite
being confined to the shadow economy, undocumented workers complement,
rather than compete with, skilled, native-born workers, and they contribute to the
Gross Domestic Product (“GDP”). See Davidson, supra (noting that, between
1990 and 2007, undocumented workers increased the pay of legal workers in
complimentary jobs by up to 10 percent). They pay billions in taxes without
expectation of receiving benefits in return and, the more integrated immigrants are
into the economy and society, the greater the benefits they contribute. See Lynch
and Oakford, supra at 2; Institute on Taxation and Economic Policy,
Undocumented Immigrants’ State and Local Contributions 1 (Jul. 2013). 25
Moreover, research suggests that granting work authorization would not adversely
affect native employment rates because undocumented workers are already
employed in complementary jobs. See David Madland and Nick Bunter, Center
25
http://www.itep.org/pdf/undocumentedtaxes.pdf.
25
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For American Progress Action Fund, Legal Status for Undocumented Workers is
Good for American Workers (Mar. 20, 2013).26
In addition, undocumented workers contribute enormous amounts in tax
revenue to the states and federal governments while receiving fewer benefits than
citizens. In 2010, undocumented immigrants contributed $10.6 billion to state and
local taxes nationwide. See Undocumented Immigrants’ State and Local
Contributions, supra. At the federal level, Stephen Goss, Chief Actuary for the
Social Security Administration, estimates that undocumented workers contribute
about $15 billion a year to Social Security through payroll taxes, but only take
back $1 billion in benefits because so few are eligible. Davidson, supra. The
overwhelming majority of undocumented workers who pay into Social Security
will never see a return on that money. In total, undocumented workers have
contributed up to $300 billion, or nearly 10 percent of, the Social Security Trust
Fund. See Davidson, supra.
B.
DAPA Will Further Increase These Positive Economic Effects,
And Will Have Positive Social Effects As Well
The economic benefits already provided by undocumented immigrants will
be bolstered by providing them with work authorization and freeing them from the
fear of deportation. When undocumented immigrants are kept in hiding or
26
https://www.americanprogressaction.org/issues/labor/news/2013/03/20/57354.
26
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working without authorization, they cannot fully participate in the economy or
their communities’ social institutions. This lack of integration fragments society
and prevents these immigrants from contributing their full potential. DAPA would
integrate grantees, producing enormous social benefits and drastically improving
the lives of many young U.S. citizens.
i.
Work Authorization Will Allow Undocumented Immigrants
Access To Better-Paying, Legal Work, With Corresponding
Economic Growth And Increased Tax Revenues
The potential benefits that undocumented immigrants could bring to the
economy are stymied by their lack of legal status. Unable to obtain legal
employment, undocumented workers earn less, pay less in taxes, and contribute
less than they otherwise would. Granting legal status to the entire undocumented
population would increase the GDP by $832 billion over 10 years, increase the
wages of all workers by $470 billion, and add 121,000 jobs per year. See Lynch
and Oakford, supra at 2, 10. The wages of undocumented workers would rise by
15.1% in five years. Id. at 2, 8. This expanded tax base would add $109 billion in
taxes over 10 years—$69 billion in federal taxes and $40 billion at the state level.
Id. at 10. In California alone, granting authorization to the undocumented Latino
population would boost Social Security and Medicare with an additional $2.2
billion annually. Manuel Pastor, Justin Scoggins, Jennifer Tran, and Rhonda Ortiz,
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Center for the Study of Immigration Integration, The Economic Benefit of
Immigrant Authorization in California 9 (Jan. 2010).27
Indeed, although both the States’ briefing and the court below portrayed
undocumented immigrants as nothing but a drain on the public fisc, Texas, in
particular, enjoys real and robust economic benefits from its undocumented
population. It takes in far more money in tax revenue from undocumented workers
than it expends on them. In 2005, undocumented workers contributed close to $1.6
billion in taxes to Texas. See Office of the Comptroller of Tex., Undocumented
Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and
Economy 20 (Dec. 2006).28 But, because Texas only spent about $1.2 billion on
undocumented workers, those immigrants created a net surplus of $425 million for
the State to enjoy. Id. Without the 1.4 million undocumented immigrants in Texas
that year, it would have lost $17.7 billion in Gross State Product. Id. Far from
harming Texas, undocumented immigrants provide a strong boost to its fiscal
health.
27
http://dornsife.usc.edu/assets/sites/731/docs/chirla_v10_small.pdf.
28
http://www.coloradoimmigrant.org/downloads/TX%2520Study%25
20on%20Undocumented%2520Immigrants%20and%20Economy.pdf.
28
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ii.
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The Experience Of DACA Shows That The Benefits Of
DAPA, Unlike The States’ Illusory Harms, Will Be Real
The financial successes of DACA suggest that DAPA’s implementation will
have similarly tangible benefits. As of March 2014, 673,417 people have applied
for DACA and 553,197 have been approved. Gonzales et al., supra, at 2. Nearly
60 percent of DACA grantees have obtained a new job, 49 percent have opened a
new bank account, 21 percent obtained healthcare, and 45 percent have increased
their earnings. Id. at 3. DACA has allowed young people to enter mainstream
American life and start realizing their full potential.
DAPA itself is projected to bring robust economic benefits. By conservative
estimates, DAPA will raise the GDP by 0.4 percent over ten years. See The White
House Council of Economic Advisors, The Economic Effects of Administrative
Action on Immigration, 6 (Nov. 2014).29 This would be the equivalent of adding
$90 billion in real GDP by 2024. Id. However, this benefit would not be confined
to the grantees. Id. Native-born workers would see their wages rise as well, and
the deficit would decrease by $25 billion over the same time frame. Id. at 12. The
most optimistic projections for DAPA’s effect on the economy state it will increase
the GDP by 0.9 percent in ten years and cut $60 billion from the deficit. Id.
29
https://www.whitehouse.gov/sites/default/files/docs/cea_2014_economic_
effects_of_immigration_executive_action.pdf.
29
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By allowing undocumented workers to fully participate in the economy,
many would also start contributing payroll taxes for the first time. See Patrick
Oakford, Center for American Progress, Administrative Action on Immigration
Reform: The Fiscal Benefits of Temporary Work Permits, 2 (Sep. 2014).30 This
spike in payroll tax contributions would be realized in the first year of
implementation. Id. at 12. All told, DAPA would add $41 billion over 10 years to
Social Security with few initial costs. See Letter from Stephen C. Goss, Chief
Actuary of the Social Security Administration, to Senator Ron Johnson, 2 (Feb. 2,
2015). 31
The economic benefits of DAPA will not be limited to the federal
government. In fact, states like Texas will receive substantial benefits that
outweigh any asserted harm. Currently, Texas is home to some 594,000 DAPAeligible parents. Center for American Progress, Executive Action on Immigration
Will Benefit Texas’s Economy (November 2014). 32 Granting work authorization to
this population would increase Texas’s tax revenues by $338 million, while on
average allowing working DAPA recipients to take home close to an additional
30
https://cdn.americanprogress.org/wp-content/uploads/2014/09/
OakfordAdminRelief.pdf.
31
http://www.ssa.gov/OACT/solvency/BObama_20150202.pdf.
32
http://www.scribd.com/doc/248188359/Economic-Benefits-of-ExecutiveAction-for-Texas.
30
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$1,900 each year. Id. On the whole, this additional income would likely be
returned to the economy fairly quickly, as undocumented immigrants, like most
workers employed in relatively low-wage jobs, are forced to spend much of their
earnings to make ends meet. Davidson, supra.
iii.
DAPA Will Also Bring Enormous Social Benefits To
American Families
In addition to directly impacting the legal presence of undocumented
immigrants themselves, DAPA will also hugely benefit those immigrants’ families,
including their U.S. citizen children. See Manuel Pastor, Jared Sanchez, and
Vanessa Carter, Center for the Study of Immigrant Integration, The Kids Aren’t
Alright – But They Could Be: The Impact of Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA) on Children, 1 (March 2015)
[hereinafter The Kids Aren’t Alright]. 33 By granting legal status to the parents of
American citizens and legal permanent residents, DAPA strengthens American
families and communities. Average grantees would see their earnings increase on
average by about 8.5 percent, leading to greater take-home pay to provide for their
citizen children. See Executive Action on Immigration Will Benefit Texas’s
Economy, supra. Around 6.3 million children have a DAPA eligible parent in their
household, and 5.5 million of those children are U.S. citizens. The Kids Aren’t
33
http://dornsife.usc.edu/assets/sites/731/docs/DAPA_Impact_on_Children_CSII_
Brief_Final_01.pdf.
31
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Alright, supra, at 2. In California alone, DAPA could lift as many as 40,000
children above the poverty line. Id. at 4.
Additionally, DAPA will erase the constant stress and fear of having a
family split apart by detention or deportation. In the first six months of 2011,
46,000 parents of U.S. citizens were deported. Joanna Dreby, Center for American
Progress, How Today’s Immigration Enforcement Policies Impact Children,
Families, and Communities: A View From the Ground 1 (Aug. 2012). 34
Deportation devastates families and is particularly scarring for children, who are
often placed in foster care or are raised by single parents, with a corresponding
increase in poverty levels. Id. at 9–10. Nationwide, children in single parent
homes are more than four times more likely to live in poverty than children with
married parents. Id. at 9. And in 2012 alone, there were 5,100 children in foster
care who could not be reunited with their families because a parent had been
deported or detained. Id. at 10.
Moreover, even when their U.S. citizen children are eligible, undocumented
parents are often reluctant to use available social services out of fear of having to
disclose their immigration status. Id. at 17. Research shows that undocumented
parents do not enroll in programs such as preschool and community health
34
https://www.americanprogress.org/wp-content/uploads/2012/08/
DrebyImmigrationFamiliesFINAL.pdf.
32
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services. Id. Access to these programs at a young age leads to better educational
and career outcomes later in life for these U.S. citizen children. Id.
The harms caused by this fear ripple out from the family across the larger
community. Undocumented immigrants often are too scared to interact with police
for fear of their immigration status being discovered. Id. at 21. They are less
likely to report crimes or cooperate with investigations, which hinders efforts to
keep our communities safe. Id. at 24. By mitigating that fear of detention or
deportation, DAPA will strengthen the families of grantees and make communities
safer for everyone.
CONCLUSION
For the foregoing reasons, amici respectfully request that this Court reverse
the order of the district court and dissolve the preliminary injunction.
33
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Respectfully submitted,
By: /s/ Nina Perales
NINA PERALES
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
110 Broadway, Ste. 300
San Antonio, TX 78205
(210) 224-5476
ADAM P. KOHSWEENEY
GABRIEL MARKOFF
O’MELVENY & MYERS LLP
2 Embarcadero Center, 28th
Floor
San Francisco, CA 94111
(415) 984-8700
LINDA SMITH
DLA PIPER LLP
2000 Avenue of the Stars, Ste. 400
Los Angeles, CA 90067
(310) 595-3038
Counsel for Amicus Curiae
34
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Date Filed: 04/06/2015
CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2015, I electronically filed the foregoing
with the Clerk of the Court for the U.S. Court of Appeals for the Fifth Circuit by
using the appellate CM/ECF system. Participants in the case who are registered
CM/ECF users will be served by the appellate CM/ECF system.
I also certify that the following counsel for the parties were served by nextday FedEx and email:
Counsel for Plaintiffs-Appellees:
J. Campbell Barker
Deputy Solicitor General
Office of the Attorney General
209 W. 14th Street
Austin, TX 78711-2548
cam.barker@texasattorneygeneral.com
Counsel for Defendants:
Scott R. McIntosh
Appellate Staff, Civil Division
Department of Justice, Room 7259
950 Pennsylvania Avenue NW
Washington, DC 20530
Scott.McIntosh@usdoj.gov
/s/ Nina Perales
Nina Perales
35
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Date Filed: 04/06/2015
CERTIFICATE OF COMPLIANCE
1.
I certify that on April 6, 2015, this document was transmitted to the
Clerk of the United States Court of Appeals for the Fifth Circuit via the Court’s
electronic-document filing system.
2.
I certify that (1) required privacy redactions have been made, 5th Cir.
R. 25.2.13; (2) the electronic copy is an exact copy of the paper document, 5th Cir.
R. 25.2.1; and (3) the electronic submission has been scanned with the most recent
version of commercial anti-virus software and was reported free of viruses.
3.
This motion complies with the page type volume limitation of Fed. R.
App. P. 29(d) and 32(a)(7)(B)(i) because it contains 6,986 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
4.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared using Microsoft Word 2010 in 14-point Times New
Roman.
/s/ Nina Perales
Nina Perales
36
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Date Filed: 04/06/2015
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
April 07, 2015
Ms. Nina Perales
Mexican-American Legal Defense & Educational Fund
110 Broadway Street
Suite 300
San Antonio, TX 78205
No. 15-40238
State of Texas, et al v. USA, et al
USDC No. 1:14-CV-254
Dear Ms. Perales,
The following pertains to your Amicus brief electronically filed
on April 6, 2015.
You must submit the seven (7) paper copies of your brief with green
covers required by 5TH CIR. R. 31.1 for OVERNIGHT DELIVERY.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Shawn D. Henderson, Deputy Clerk
504-310-7668
cc:
Mr. Chirag Gopal Badlani
Mr. J. Campbell Barker
Mr. James Davis Blacklock
Ms. Beth S. Brinkmann
Mr. Jeffrey A. Clair
Ms. Melissa Ellen Crow
Mrs. April L. Farris
Mr. Matthew Hamilton Frederick
Mr. Kyle R. Freeny
Mr. Matthew James Ginsburg
Mr. William Ernest Havemann
Mr. Scott A. Keller
Mr. Scott R. McIntosh
Mr. Paul Orfanedes
Case: 15-40238
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.
Mr.
Mr.
Ms.
Document: 00512995575
Bradley S. Phillips
Alex Potapov
Matthew E. Price
Noah Guzzo Purcell
Jay A. Sekulow
Benjamin Gross Shatz
Clifford M. Sloan
Karen Cassandra Tumlin
Seth Paul Waxman
Jonathan Weissglass
Elizabeth Bonnie Wydra
Page: 2
Date Filed: 04/06/2015